68 Wn. App. 802, 845 P.2d 1355, STATE v.
FLORA

Dec. 1992

[No. 27542-9-I. Division One. December 14, 1992.]

STATE v. FLORATHE STATE OF WASHINGTON, Respondent, v.
JAMES FLORA, Petitioner.

[1] Privacy – Privacy Act – Private Conversations – Question
of Law or Fact. For purposes of RCW 9.73.030,
which makes criminal the recording of a private conversation without all
parties' consent, whether a specific conversation is private depends on the
facts involved. The issue may be decided as a matter of law when the facts are
undisputed.

[2] Privacy – Privacy Act – Private Conversations – What
Constitutes – In General. For purposes of RCW 9.73.030,
which makes criminal the recording of a private conversation without all
parties' consent, a conversation is "private" if it is secret and intended only
for those persons involved in it and not for the public.

[3] Privacy – Privacy Act – Purpose. One of the purposes of
the privacy act (RCW 9.73)
is to protect individuals from the dissemination of information spoken in
private conversations.

[4] Privacy – Privacy Act – Private Conversations – Police
Officer's Duties – Arrest. Statements made by police officers when effecting an
arrest in their official capacity do not constitute "private conversations"
within the meaning of RCW 9.73.030,
which makes criminal the recording of private conversations without all parties'
consent.

[5] Privacy – Privacy Act – Private Conversations – What
Constitutes – Threshold Inquiry. The recording of a conversation without all
parties' consent does not violate RCW 9.73.030
if the conversation is not entitled to be private.

Nature of Action: Prosecution for recording a private conversation
without both parties' consent. The defendant had used a hidden tape recorder to
record statements made by the police during his arrest for a different crime.

District Court: The Skagit County District Court, No. 11704, Eugene
C. Anderson, J., on April 17, 1990, entered a judgment on a verdict of guilty.

GROSSE, C.J. – James Flora appeals his conviction for recording a
private conversation without both parties' consent in violation of RCW 9.73.030.
The charge was brought after he attempted to record his arrest.

Flora is an African-American residing in Sedro-Woolley. Flora
contends that on one occasion one of his neighbors called his daughters "nigger
bitches" while the girls were playing in their front yard. The older of the two
girls threw mud on the neighbor's car in retaliation. The police were summoned
to arrest the girls for malicious mischief. When they arrived the girls became
upset and Flora sent the younger one into the house, at which point he was
arrested for obstruction of justice. He maintains that he was handled roughly
and called "nigger" during his arrest. His daughter was also arrested. The
charges against Flora and his daughter were ultimately dismissed, but his
neighbor obtained a restraining order against Flora and his family.

On September 20, 1989, Flora stood in the middle of the street in
front of his neighbor's house and took pictures of a friend, Norma Sherrin,
driving his car in front of his house. The neighbor, concluding that he was
photographing her house and possibly violating the protective order as well,
called the police.

The police officers who arrived, Luvera and Stubben, were the same
ones involved in Flora's 1988 arrest. They informed Flora that his neighbor was
complaining that he had approached her home and photographed it in violation of
the protective order. Flora explained that he had been standing in the road in
front of his neighbor's house, at a distance of over 20 feet as required in the
order. He also told them he was taking pictures of his car in order to establish
the distance of the car to his house for use in a different court matter. He
offered to show the photographs to the police officers, but they refused.
Instead, they arrested him for violating the restraining order. Flora was never
convicted of that offense.

During his conversation with the officers, Flora and Sherrin entered
the house to retrieve the protective order in order to show the officers that
the limit was 20 feet rather than 25 feet. They not only brought out the order
but a pile of other papers as well. Hidden among them was a small tape recorder.
Flora maintains that he wanted to record the conversation because he feared the
deputies would assault him and use racial slurs as they had done in the past. He
explains that he felt particularly apprehensive because the officers refused to
look at the pictures he had taken, pictures which, he thought, would prove he
had not been photographing his neighbor's house.

When Flora and Sherrin came out of the house the officers proceeded
with the arrest. The stack of papers was placed on the hood of the police car.
After Flora was placed in the car, Sherrin picked up the papers and one of the
officers saw the tape recorder. Sherrin was arrested and the tape recorder
confiscated.

At trial, Flora testified that although the police officers made no
verbal threats, their manner made him feel threatened.

Sherrin testified that she had driven Flora's car down the road
while Flora photographed it, after which they left for a short time, and that
they found the police officers waiting for them when they returned to Flora's
house. She also testified that during her own arrest she was twisted and lifted
off the ground.

The State charged Flora with recording his arrest, a private
conversation, in violation of RCW 9.73.030.
The matter was tried before a jury in district court. At the close of testimony,
defense counsel made a motion to dismiss for failure to prove a prima facie
case, arguing that the conversation did not qualify as private, and that there
could be no cause of action on these facts. The court denied the motion and the
jury proceeded to convict Flora. Flora made an unsuccessful appeal to the
superior court. He now appeals to this court asserting that RCW 9.73.030
is unconstitutionally vague, that the court erred in failing to cure the
constitutional infirmity by properly instructing the jury, and that the
conversation recorded was not private. Because we hold that the conversation at
issue was indeed not private, we do not reach Flora's other assignments of
error. Flora contends the trial court erred in denying his motion to dismiss for
failure to state a cause of action. We agree. RCW 9.73.030,
the statute under which Flora was convicted, provides in pertinent part:

Intercepting, recording or divulging private communication –
Consent required – Exceptions. (1) Except as otherwise provided in this chapter,
it shall be unlawful for any individual, partnership, corporation, association,
or the state of Washington, its agencies, and political subdivisions to
intercept, or record any:

. . . .

(b) Private conversation, by any device electronic or otherwise
designed to record or transmit such conversation regardless how the device is
powered or actuated without first obtaining the consent of all the persons
engaged in the conversation.

(2) Notwithstanding subsection (1) of this section, wire
communications or conversations . . . (b) which convey threats of extortion,
blackmail, bodily harm, or other unlawful requests or demands, . . . may be
recorded with the consent of one party to the conversation.

The State urges us to adopt the view that public officers
performing an official function on a public thoroughfare in the presence of a
third party and within the sight and hearing of passersby enjoy a privacy
interest which they may assert under the statute. We reject that view as wholly
without merit.

expresses a legislative intent to safeguard the private
conversations of citizens from dissemination in any way. The statute reflects a
desire to protect individuals from the disclosure of any secret illegally
uncovered by law enforcement.

[4, 5] The State advances no persuasive basis for its contention
that the conversation between the officers and Flora should be considered
private. We note in particular that in none of the cases it cites as controlling
were public officers asserting a privacy interest in statements uttered in the
course of performing their official and public duties. Rather, the question in
those cases was whether the personal privacy of an individual was improperly
invaded. See State v. Cunningham, 23
Wn. App. 826, 843-44, 598 P.2d 756 (1979), rev'd, 93
Wn.2d 823, 613 P.2d 1139 (1980); State v. Grant, 9
Wn. App. 260, 265, 511 P.2d 1013, review denied, 83
Wn.2d 1003 (1973), cert. denied, 419 U.S. 849 (1974); State v. Caliguri, 99
Wn.2d 501, 506, 664 P.2d 466 (1983); State v. Wanrow, 88
Wn.2d at 228-32. The State now urges us to distort the rationale of those
cases to support the proposition that police officers possess a personal privacy
interest in statements they make as public officers effectuating an arrest.

Our research into other legal sources, in which a literature on the
notion of privacy may be said to exist, has produced no cases which support the
State's position. In Fourth Amendment analysis, and tort theory, for example,
the question whether a matter is private occasions a threshold inquiry into
whether the matter at issue ought properly be entitled to protection at all:

It is clear, however, that there must be something in the nature
of prying or intrusion, . . . It is clear also that the thing into which there
is intrusion or prying must be, and be entitled to be, private.

The conversation at issue fails this threshold inquiry; the arrest
was not entitled to be private. Moreover, the police officers in this case could
not reasonably have considered their words private. 1

1 We note, incidentally, that the police officers testified at
trial that they did not consider the conversation private.

Because the exchange was not private, its recording could not
violate RCW 9.73.030
which applies to private conversations only. We decline the State's invitation
to transform the privacy act into a sword available for use against individuals
by public officers acting in their official capacity. The trial court erred in
denying Flora's motion to dismiss. Flora's conviction is reversed and the case
dismissed.